Protection of traditional cultural expressions from improper exploitation within the conventional trademark law system

Abstract

ABSTRACT

Since few decades ago, the use of traditional (indigenous) insignias on commercial products of non-indigenous origin has been increasing, across the globe. Either as offensive or exploitative the respective practice is unacceptable for indigenous people. Appropriation of traditional insignias by non-indigenous people - i.e. registering indigenous names and symbols as trademarks for commercial products of non-indigenous origin has been considered as particularly unacceptable practice.

The aim of the paper is to assess whether the conventional trademark law system contains mechanisms that can combat inappropriate use of traditional insignias. In order to achieve respective goal, international and European sources in the field of trademark law, as well as specific national solutions, are analyzed.

Research has revealed that conventional trademark law systems provide protection against misuse of traditional insignias only in exceptional occasions. However, minor intervention in conventional trademark law systems (as has been done in New Zealand by introducing the concept of cultural offense as an absolute ground for trademark refusal) can increase effectiveness when it comes to combating offensive uses of indigenous insignias. In addition, major interventions (such as Canadian solution – i.e. introduction of official insignias as a special type of trademark) can provide extremely effective protection against various forms of misuse.